Adventures on the Back of the Envelope, Part III: What’s the Hardest Federal Crime to Prove?

What’s the most difficult federal crime to prove at trial? A little while ago, I tried to answer this question by running a series of inquiries in a database that I’ve put together. This database relates the charge-level disposition of all federal court cases that terminated between October 2002 and September 2009. By framing the proper queries, I can tease out data that, while far from perfect, suggests answers to questions like the one above. (Among the limitations of the data, the database only lists the five most serious charges in each case, and I’ve spotted some inputting errors by court personnel.)

Anyway, take a guess. I’ll give you an answer after the jump.

According to the data, the federal crime with the highest acquittal rate at trial during this span was 18 U.S.C. 242 – violation of civil rights under color of law. The second-highest trial acquittal rate belonged to a companion offense, 18 U.S.C. 241. Individual charges alleging these crimes claimed far higher acquittal rates at trial (just over 50 percent for the former, just under 50 percent for the latter) than any other frequently alleged offense. (Note that this is a charge-level, not a case-level exercise; if a single defendant in a particular case was convicted on one section 242 count and acquitted on another, this would be recorded as a 50 percent acquittal rate.) By comparison, per the data in the database, the overall acquittal rate at trial for individual tried charges was right around 20 percent. In other words, federal prosecutors prevailed on four out of every five counts tried to verdict over this span.

In a way, this is a frivolous exercise, but in a way, it isn’t. It’s silly in that any crime can be difficult to prove at trial, if prosecutors consistently misframe their charges, relative to the proof at hand. (Such systemic misfiring would be telling in its own way, of course.) At the other extreme, prosecutors may simply refuse to charge other crimes that may be “more difficult” to prove in the abstract—in that, perhaps, the associated proof is always susceptible to an alternative, innocent explanation—with the total absence of cases masking the existence of a “more difficult” crime to prove.

To the extent that this exercise has a useful edge, it’s this: It demonstrates that, as I discuss in a recent article, crimes aren’t widgets. Each crime has its own idiosyncratic characteristics, which will make the offense more or less difficult to prove at trial, more or less amenable to plea-bargaining, etc. The peculiar circumstances that surround 18 U.S.C. 242—the character of the crime, how the crime has been interpreted by courts, the identities and interests of the defendants, the motives of prosecutors charged with enforcing this law–ensure that this crime will have a high acquittal rate when tried, but that prosecutors nevertheless will feel obliged to bring these charges (though I should add that the Department of Justice rigorously screens these cases, perhaps to a greater extent than almost any other type of case).

In fact, the acquittal rate for 18 U.S.C. 242 charges is today much lower than it was decades ago. Back in the 1950s through the 1970s, prosecutors lost the vast, vast majority of 18 U.S.C. 242 cases that they brought. Consider, for example, this excerpt from the Congressional testimony of K. William O’Connor, Deputy Assistant Attorney General at the Civil Rights Division of the Department of Justice, from back in 1973:

During fiscal 1973, cases involving 80 defendants were terminated at the trial level by the Criminal Section of the Civil Rights Division. Of these, 52 defendants were law enforcement officers who were charged under present [section] 242 with depriving persons of federal constitutional rights through the use of excessive force. These defendants’ charges were terminated in the following manner.

Four were dismissed at the government’s motion.

Four pleaded guilty.

Forty-four were tried, and nine of the 44 were convicted.

While this gives the Section a slightly better conviction rate for fiscal 1973 in this type case than in the last three fiscal years combined—25% compared to about 12%– it is in striking contrast to the Section’s conviction rate of 68% for other types of civil rights cases involving other statutes.

(Emphasis added.) That prosecutors returned to section 242 again and again back in the 1960s through the 1970s, notwithstanding the puny conviction rate for this offense, raises what I consider an interesting question: When should a prosecutor bring charges as to which he or she believes (objectively reasonably, I should add) the defendant is guilty beyond a reasonable doubt, and that an unbiased jury would find as much, but as to which he or she also believes (again, objectively reasonably) that there exists a significant chance of jury nullification?

Among the data fields included in both these datasets and my database are the five most serious initial charges, and the five most serious charges at the time of case termination. One issue with this “most serious” calculation concerns its bypass of enhancements; the “most serious” designation follows from the base offense level assigned to the offense.